Estus, Co. v. State ex rel. Dinwiddie, Co.

• Decision Date: 13 September 1921
• Docket Number: Case Number: 12076
• Citation: 200 P. 1002,83 Okla. 181,1921 OK 316
• Parties: ESTUS, Co. Clerk, et al. v. STATE ex rel. DINWIDDIE, Co. Atty.
• Court: Oklahoma Supreme Court

1921 OK 316

200 P. 1002

83 Okla. 181

ESTUS, Co. Clerk, et al. v. STATE ex rel. DINWIDDIE, Co. Atty.

Case Number: 12076

Supreme Court of Oklahoma

Decided: September 13, 1921

Syllabus

¶0 1. Mandamus--Claim Against County--Warrant--Attestation by County Clerk--Ministerial Act. When a claim against the county has been duly presented and allowed by the board of county commissioners, and a warrant drawn for the payment of the same, the attesting of the warrant by the clerk is a purely ministerial act as to which there is no discretion, and if there has been a sufficient appropriation to the funds upon which the warrant is drawn, it is the duty of the clerk to attest the warrant without regard to the lawfulness of the same.

2. Same--Duties of County Clerk and Treasurer. The acts of the county clerk and county treasurer in attesting and registering warrants being ministerial, the funds being available for this specific purpose, it is the duty of the clerk to attest said warrants and the treasurer to register the same.

3. Taxation--Penalties for Delinquency--Disposition--Funds. The penalty upon delinquent taxes is not a part of the tax, but the Legislature has exercised its sovereign power and imposed this penalty as an additional charge or penalty for delinquency upon the part of the taxpayers in order to hasten the payment of the taxes due The penalty is not created by a levy of the tax, and the fund being created by the Legislature, it follows that the Legislature has a right to dispose of such funds to the same effect as other fines and penalties and as other funds of the state.

C. G. Horner, for plaintiffs in error.

A. V. Dinwiddie, for defendant in error.

MCNEILL, J.

¶1 This action was commenced in the district court of Logan county by the state of Oklahoma, on relation of A. V. Dinwiddie, county attorney, for a writ of mandamus to compel R. A. Estus, the county clerk of said county, to attest certain warrants, and Frank Bond, the county treasurer, to register the same. The petition alleged that the county commissioners of Logan county in September, 1910, made an order appropriating $ 15,000 of the sinking fund derived from penalties on taxes, and forfeitures, or as much thereof as might be necessary, to remodel and repair the county jail as provided by chapter 77, Session Laws 1919, and thereafter entered into contracts for the construction of said improvements. No protest was ever filed against making said appropriation. After the work was completed, claims were filed with the county commissioners and were approved by them and warrants were drawn for the payment of said claims, but Estus, as county clerk, refuses to attest said warrants, and Frank Bond, county treasurer, refuses to register said warrants. An alternative writ of mandamus was issued, and the defendants filed their answer, and for a defense pleaded: First: Denying generally the allegations of the petition. Second: That the petition did not state a cause of action. Third: That the defendants refused to attest said warrants and register the same, for the reason that the acts of the county commissioners in letting said contracts were contrary to law and without legal force, and that the acts referred to were in violation of article 10, sec. 19, of the Constitution. Fourth: That the actions are in violation of article 10, sec. 29, of the Constitution. Fifth: That the acts are unlawful, and attempt to take public money raised for one purpose and use it for another. Sixth: That said acts are unlawful in attempting to transfer money from one fund to another. Seventh: That said acts are in violation of section 8, ch. 226, of the Session Laws of 1917. As a fourth defense they allege that they are officers and under bond, and believing the acts attempted are contrary to law, and have declined to perform the same. The case was submitted to the court upon an agreed statement of facts. The court rendered judgment in favor of the plaintiff and against the defendants, requiring the county clerk to attest said warrants and the county treasurer to register the same. From said judgment the defendants have appealed. For reversal it is contended that the act of the Legislature authorizing the appropriation of this money was unconstitutional. It is conceded the county commissioners proceeded in accordance with chapter 77, Session Laws of 1919, and no protest was ever filed, and the contracts for said improvement were let as provided by statute, and the parties performed the work and furnished the material under their contracts, and filed their bills with the county commissioners, which were duly allowed. The defendant in error contends that the act of the county clerk in attesting said warrants is simply a ministerial act, and he has no discretion on his part, therefore mandamus is the proper remedy. That as to the county treasurer, the appropriation has...